Tuesday, March 31, 2009

Well, some might argue that from the headline, Scotland has become that dark place of evil one American television evangelist once called us .. well, not among all of us .. mostly just the professional classes it seems (yes, the brickies & plumbers cant afford bondage sessions – Ed)

Anyway, the Scottish Parliament with nothing better to do, heard pleas from Green MSP Patrick Harvie to lift the fear of prosecution for assault from those taking part in consensual bondage, sado-masochism, simulated rape clubs (which apparently contain people like your children's teachers, priests, doctors, accountants and oh yes, lawyers & sheriffs) and similar practices.

However, the amendment was dropped (phew- Ed) after the Justice Secretary Kenny MacAskill and other MSPs said allowing Mr Harvie’s amendment could provide a loophole for those charged with domestic abuse and sex crimes. Tory Justice Convener Bill Aitken did however, say Mr Harvie was right to bring it to the attention of the Justice Committee …however, no word was provided on how many MSPs enjoyed out of hours bdsm sessions along with sheriffs, and several well known solicitors recently exposed in the media (ahem. more to come ! – Ed)

MSPs today heard a plea for the fear of prosecution for assault to be lifted from those taking part in consensual bondage, sado-masochism, and similar practices.

The plea came from Green MSP Patrick Harvie who told a Holyrood committee the present law was an "anomaly".

But he dropped a bid to change the law after Justice Minister Kenny MacAskill and other MSPs said lifting the threat of prosecution could provide a loophole for those charged with domestic abuse and sex crimes.

Mr Harvie made his plea when the Justice Committee today scrutinised the Sexual Offences (Scotland) Bill.

If passed, the Bill will radically overhaul existing law on rape and other sex crimes, and will redefine consent as "free agreement".

Mr Harvie tabled an amendment to the Bill under which the crime of assault would not be committed if consensual acts between those over 16 were carried out for "sexual gratification", if both participants agreed and where serious injury was unlikely.

He said he was tabling the amendment to trigger debate and to enable Mr MacAskill to explain why a change recommended by the Scottish Law Commission was not included in the Bill.

Mr Harvie told MSPs the practices covered by his amendment were known as "BDSM activity", a term which includes bondage, sadism, masochism, dominance and submission.

He accepted the Government feared such a provision could be misused by those accused of domestic abuse.

He argued that if the Government believed BDSM activity between consenting adults was a criminal offence, that was an anomaly.

"All other matters being equal, these situations should not be seen as a priority for prosecution," he said.

"In situations where consent is uncontested, where all the people involved agree there was free and informed consent between them, these should surely not be treated as assaults worthy of prosecution and punishment."

The present law could cause harm of the type once suffered by gay men, said Mr Harvie.

"Many ordinary people who simply have a different kind of sex life to other people can lose their jobs, their homes and their family as a result of public disapproval."

Mr Harvie said he was not talking about people like Formula One motor racing boss Max Moseley "who can put up a fight in the courts based on the principle of privacy", or those in the public eye, He said there was not clear law on privacy.

"But caught in the crossfire of that debate, people's lives can be ruined," said the MSP.

But other MSPs on the committee voiced fears that the change he argued for could provide a defence loophole in domestic abuse cases.

Committee convener and Tory MSP Bill Aitken said Mr Harvie was right to bring the matter to the committee.

Mr Aitken said there could be an argument that what took place between two consenting adults in private was a matter for them alone - but that had two key provisos.

The first was that the violence did not lead to injury, and the second was consent.

"I cannot envisage circumstances where a matter would come to the attention of police and the prosecution authorities which had not breached these caveats," said Mr Aitken.

Mr MacAskill told the committee said the Scottish Government had rejected the original Law Commissioner recommendation for reform because of "serious concerns" that it could create a loophole in cases of rape, sexual assault and domestic violence.

"If this provision were enacted, the accused might seek to argue in such cases that the complainer consented to the assault, and that the assault was for the purposes of sexual gratification," said the minister.

"In some cases, it may be very difficult for the Crown to disprove such a claim.

"Respondents to the Government's consultation on the law commission report were almost all opposed to this recommendation."